The plaintiff, T-Mobile Northeast, appealed the decision of the lower court, which affirmed the defendant’s, the Township of Cherry Hill Zoning Board of Adjustment, denial of the plaintiff’s site plan and bulk variance applications. The New Jersey Superior Court, Law Division, reversed the order of the lower court affirming the defendant’s denial of the site plan and bulk variance.
Starting in 2007, the plaintiff sought to construct a cellular phone tower, and needed to obtain variances and a site plan approval. The plaintiff proceeded in a bifurcated fashion, as permissible under state law, and first obtained the use and height variances. With those in hand, the plaintiff then sought a site plan approval, which included a substantial setback variance, as the local ordinance required a 195 foot setback for such towers, and the plaintiff requested a 65 foot setback. In order to obtain such a setback, the plaintiff would need to either show undue hardship or seek a “flexibility” variance. Under the undue hardship variance, the plaintiff would need to show “exceptional and undue hardship,” and that if the variance where to be granted, the intent or purpose of the plan would not be substantially impaired. The court found that the defendant’s denial of the undue hardship variance was supported by the record, as the plaintiff sought a substantial deviation that was not due to the geography of the land, but rather existing structures.
The court then moved to the “flexibility” or “good planning” variance, stating that the plaintiff would need to show that any harm to the community would be outweighed by the benefits; that the variance would simply make sense under the conditions. The record revealed that the community would benefit from a new cell phone tower and also that the proposed location would be advantageous. The proposed location, though within the setback requirement from the highway, was the best of the feasible sites. For one, the setback requirement a non-point as it was based on the illusory concern of safety, as cell towers crumble in the middle, and not out lengthwise. Additionally, the proposed site would be completely sheltered from view from the public right of way at ground level, easing aesthetics concerns. Also, the other alternate proposed sites would be located in places that are in plain view and would burden the existing property uses. Given these facts, it was evident that the proposed location would best serve the purpose of the zoning ordinance, as the aesthetic concerns would be addressed in the most favorable manner and the locality would receive the improved cellular service that it needed. Thus the Superior Court, Law Division reversed the lower courts affirmation of the defendant’s site plan and bulk variance, as the flexibility variance section of the New Jersey code was satisfied.
T-Mobil Northeast v. Township of Cherry Hill Zoning Board of Adjustment, 2011 WL 1045144 (N.J. Super. Ct. Law Div. Mar. 24 2011)
The opinion can be accessesd at: http://lawlibrary.rutgers.edu/courts/appellate/a6020-07.opn.html.
